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808 F.

2d 864

UNITED STATES of America, Appellee,


v.
Russell BONNER, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Wayne BONNER, Defendant, Appellant.
Nos. 86-1327, 86-1328.

United States Court of Appeals,


First Circuit.
Argued Sept. 3, 1986.
Decided Dec. 30, 1986.

Carmin C. Reiss, Federal Defender Office, and Edward A. Gottlieb with


whom Coyne & Gottlieb, Boston, Mass., were on joint brief for
defendants-appellants.
Ralph C. Martin, II, Asst. U.S. Atty., with whom William F. Weld, U.S.
Atty., Boston, Mass., was on brief for appellee.
Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, *
District Judge.
TORRUELLA, Circuit Judge.

This is a consolidated appeal from judgments entered in the United States


District Court for the District of Massachusetts convicting defendants, now
appellants, Russell Bonner and Wayne Bonner, of one count alleging the
manufacture of amphetamine, a violation of 21 U.S.C. Sec. 841(a)(1), and one
count alleging a conspiracy to manufacture amphetamine, a violation of 21
U.S.C. Sec. 846. Defendants are appealing the denial by the district court of
their motions to suppress evidence. We affirm the order of the district court.

Background
2

In September 1985, the Drug Enforcement Administration (DEA) began an

In September 1985, the Drug Enforcement Administration (DEA) began an


investigation of two brothers, Russell and Wayne Bonner. The Bonner
residence was placed under regular surveillance. In November 1985, a DEA
agent applied to a United States Magistrate for a search warrant and arrest
warrants for the Bonners. The affidavit outlined the investigation and contained
a detailed physical description of the premises,1 as well as a detailed
description of the items to be seized, and the address.2 The Magistrate found
"more than probable cause" to issue the warrants. Attached to the search
warrant was the same description of the premises that was contained in the
affidavit (see footnote 1); the exact address, however, was not included. Upon
the issuance of the warrants, the DEA agent promptly telephoned the "case
agent" in charge of the investigation, who had conducted surveillance of the
premises in question on at least ten prior occasions. The case agent was waiting
with other agents near the Bonner residence and immediately commenced the
search.

Shortly after the search warrant was issued, the Magistrate discovered the
omission of the address. He ordered the search suspended; at that point, 45
minutes into the search, several items had been observed and seized. Within the
hour, the Magistrate issued a second warrant, which included the address, and
the search was resumed. The agents searched the entire Bonner residence, the
two-car garage, a barn, and a trailer.

The appellants contend that any evidence found during the initial search must
be suppressed because it was seized in reliance on a defective search warrant.
They also assert that the evidence found in the garage should be suppressed
because the garage was not included in the description of places to be searched.
Finally, they contend that the search improperly began before the search
warrant actually arrived on the scene.

The Omission of the Address


5

The Fourth Amendment states that "no warrants shall issue, but upon probable
cause, ... and particularly describing the place to be searched...." The manifest
purpose of the particularity requirement of the Fourth Amendment is to prevent
wide-ranging general searches by the police. United States v. Leon, 468 U.S.
897, 963, 104 S.Ct. 3405, 3430, 82 L.Ed.2d 677 (Stevens, J., dissenting)
(1984).

The test for determining the adequacy of the description of the location to be
searched is whether the description is sufficient "to enable the executing officer
to locate and identify the premises with reasonable effort, and whether there is

any reasonable probability that another premise might be mistakenly searched."


United States v. Turner, 770 F.2d 1508, 1510 (9th Cir.1985); United States v.
McCain, 677 F.2d 657, 660 (8th Cir.1982); United States v. Gitcho, 601 F.2d
369, 371 (8th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96
(1979).
7

In Turner, a warrant having an incorrect street address two-tenths of a mile


from the intended location was upheld. 770 F.2d 1508. The house had been
under surveillance, the warrant was executed by an officer who had participated
in the surveillance, and the premises that were searched were those actually
intended. Turner, 770 F.2d at 1511. The first prong of the sufficiency test was
met because "the verbal description contained in the warrant described the
house to be searched with great particularity." Id. The above factors are present
in the instant case. Additionally, the physical description here is even more
limiting, because it includes a mailbox with the name "Bonner" in front of the
residence. Appellants assert that there are thirteen telephone directory listings
for Bonner in the Attleboro, Massachusetts area. It is highly unlikely, however,
that the residences of these other Bonners would fit the particularized physical
description provided for in the warrant.

In the Gitcho case, although the only description of the location to be searched
was an incorrect street address, the court found it to be sufficient because it was
unlikely that the wrong premises would be searched, and the agents executing
the warrant personally knew the location to be searched. Here, the case agent
executing the warrant had conducted surveillance of the Bonner residence on at
least ten prior occasions. Gitcho, 601 F.2d at 372. Similarly, in United States v.
Hassell, the warrant's only description of the place to be searched was "the
Howard Hassell farm." The court held that this description was sufficient to
allow officers to ascertain the place to be searched, especially where three
officers remained at the scene while one officer obtained the search warrant.
United States v. Hassell, 427 F.2d 348, 349 (6th Cir.1970).

The warrant here, considering the circumstances of its issuance and execution,
suffered from a minor, technical omission. There was no risk that federal agents
would be confused and stumble into the wrong house, or would take advantage
of their unforeseeable windfall and search houses indiscriminately. The agents,
having previously conducted the surveillance, knew exactly which house they
wanted to search, described it accurately and in detail in their affidavit, and
searched only that house without delay after the warrant issued. We hold that
the Bonner residence was described with sufficient particularity, and although
the address was inadvertently omitted, there was no reasonable probability that
another premises might be mistakenly searched; thus, the search warrant was

valid.
10

Even assuming that the search warrant was invalid due to the omission of the
address, the evidence was properly admitted under the good faith exception to
the warrant requirement. See United States v. Leon, 468 U.S. 897, 104 S.Ct.
3405, 82 L.Ed.2d 677 (1984), on remand, 746 F.2d 1488 (9th Cir.);
Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737
(1984). In Leon, the Supreme Court held that evidence seized by police officers
acting in objectively reasonable good faith reliance on a search warrant issued
by a neutral and detached magistrate, but ultimately found to be unsupported by
probable cause, need not be suppressed. The exclusionary rule should be
limited to those situations where its remedial objectives are best served, i.e., to
deter illegal police conduct, not mistakes by judges and magistrates. Id., 468
U.S. at 908 and 916, 104 S.Ct. at 3413 and 3418.

11

In Sheppard, the Court applied the Leon test to a search warrant deficient in the
description of the items to be seized. The affidavit presented by the police
detective sufficiently described the items to be seized, however, the magistrate
failed to incorporate the affidavit into the warrant. The Court held that the
officers had an objective, reasonable basis for their mistaken belief that the
warrant authorized a search for the materials outlined in the affidavit. Sheppard,
468 U.S. 988, 104 S.Ct. 3428. The Court noted that the officers took every step
that could reasonably be expected of them to ensure that the search was legal.
Id. at 989, 104 S.Ct. at 3429.

12

In the instant case, the agents also took every step that could reasonably be
expected of them. An affidavit was prepared and presented to a neutral
magistrate. After grammatical corrections were made by the magistrate, who
concluded that probable cause was established, the search warrant was issued,
with the detailed physical description of the premises taken from the affidavit
attached onto the warrant. At this point, the agent had an objective, reasonable
basis to believe that the fourth amendment's warrant requirement was satisfied.
The responsibility for the inadvertent omission of the address on the warrant
itself, must be borne by the magistrate, as the final reviewing authority. And, as
the exclusionary rule does not serve to deter the errors of judges, but rather the
errors of police officers, this court must conclude that it is inappropriate here.
Leon, 468 U.S. at 916, 104 S.Ct. at 3418.

The Scope of the Warrant


13

Appellants contend the DEA agents went beyond the scope of the search
warrant when they searched the detached two-door garage. According to

appellants, the garage was included in the property description in the warrant
and the affidavit (see footnote 1) only to help locate the property, not as an area
to be searched.
14

The fourth amendment serves to protect the individual's interest in privacy. Any
search intruding upon that privacy interest must be justified by probable cause
and must satisfy the particularity requirement, which limits the scope and
intensity of the search. United States v. Heldt, 668 F.2d 1238, 1256
(D.C.Cir.1981). When investigators fail to limit themselves to the particulars in
the warrant, both the particularity requirement and the probable cause
requirement are drained of all significance as restraining mechanisms, and the
warrant limitation becomes a practical nullity. Id. at 1257. The concern here is
the particularity requirement's limitation on the area to be covered by the search
operation.

15

The authority to search granted by any warrant is limited to the specific places
described in it, and does not extend to additional or different places. See, e.g.,
United States v. Principe, 499 F.2d 1135, 1137 (1st Cir.1974); Keiningham v.
United States, 287 F.2d 126, 129 (D.C.Cir.1960). However, search warrants
and affidavits should be considered in a common sense manner, and
hypertechnical readings should be avoided. Spinelli v. United States, 393 U.S.
410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); United States v.
Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684
(1965). For example, warrants authorizing a search of "premises" at a certain
address authorize a search of the buildings standing on that land. United States
v. Williams, 687 F.2d 290, 293 (9th Cir.1982); United States v. Meyer, 417
F.2d 1020, 1023 (8th Cir.1969). In a recent decision by this court, a warrant
authorizing a search of "the premises known as a single family trailer ... with
attached carport ..." was held to include a disabled car, parked adjacent to the
carport, and a birdhouse hanging from a tree about 15' from the trailer steps.
United States v. Asselin, 775 F.2d 445, 447 (1st Cir.1985).

16

In United States v. Napoli, 530 F.2d 1198, 1200 (5th Cir.1976), the court held
that a warrant specifying "on the premises known as 3027 Napoleon Avenue,"
although limited by the language "being in a large, multiple story, woodenframe residential dwelling," was sufficient to embrace the vehicle parked in the
driveway on those premises. The warrant in the instant case was likewise
sufficient to embrace the garage located on the Bonner property. See also
United States v. Long, 449 F.2d 288 (8th Cir.1971) (trash barrel outside
building held to be part of "premises" where warrant contained address and
description of "a one-story red brick structure ...").

17

18

In the present case, the word "properties" was used in the warrant instead of
"premises"; these words are sufficiently synonymous to be considered
interchangeable. In United States v. Heldt, 668 F.2d 1238, 1265
(D.C.Cir.1981), the language "suite of offices of Mr. Heldt" was given just as
broad an interpretation as "premises" was given in Asselin, supra. The court
looked at the question of whether or not a free-standing office, not mentioned in
the warrant, belonging to a person who did not work for Heldt, could
reasonably have been viewed by the searching agents as constituting part of
"the suite of offices of Mr. Heldt." Heldt, 668 F.2d at 1263. The office was
reasonably considered by the searching agents as part of, or even appurtenant
to, the "properties" to be searched. Id. at 1265. See also United States v.
Principe, 499 F.2d 1135 (1st Cir.1974) (where warrant authorized search of
particular apartment in building, and cabinet was three to six feet away from
entrance to apartment in small hallway opposite door to apartment, officers
executing search warrant could reasonably suppose cabinet was appurtenant to
apartment).
It is apparent from the preceding case law that if the "detached two car garage"
had never been mentioned in the warrant, it would have been reasonably
considered within the scope of the warrant. It should not be precluded from the
scope of the warrant simply because it was included in a careless manner,
giving rise to the ambiguity of whether it was intended merely as a descriptor of
the property, or as an area to be searched. But it is clear from the affidavit that
the agents did intend to search the garage. The affidavit contains the
observation that one of the defendants drove his car into the garage after he was
known to have purchased a small quantity of a particular chemical. Granting
some ambiguity, the imprecision did not leave so much to the discretion of the
officers executing the warrant, that it can fairly be said the warrant authorized
an unbounded general search in violation of the particularity requirement. See
Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

Possession of Warrant
19

Finally, appellants contend that the evidence seized should have been
suppressed because the search warrant was not in the agents' physical
possession at the time of entry. We disagree. "[T]he Federal Rules of Criminal
Procedure [do not] impose an inflexible requirement of prior notice. Rule 41(d)
does require federal officers to serve upon the person searched a copy of the
warrant and a receipt describing the material obtained, but it does not invariably
require that this be done before the search takes place." Katz v. United States,
389 U.S. 347, 356 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576 (1967). See
also United States v. Woodring, 444 F.2d 749, 751 (9th Cir.1971).

20

Courts have repeatedly upheld searches conducted by law enforcement officials


notified by telephone or radio once the search warrant issued. See, e.g., United
States v. Marx, 635 F.2d 436, 440 (5th Cir.1981) (suitcases seized at the time
of defendant's arrest searched by DEA agent after telephone call from DEA
agent who applied for and received search warrant, and warrant given to
defendant the day after the search); United States v. Cooper, 421 F.Supp. 804,
805 (W.D.Tenn.1976) (federal officers searched house after told by radio that
search warrant issued by federal magistrate, and warrant arrives an hour and a
half after the search started); United States v. Woodring, supra, 444 F.2d at 751
(police officers searched house after learning over police radio that a search
warrant had issued and was on its way to premises, and warrant arrives an hour
and a half after search started).

21

The rationale of these decisions fully applies here. "Violations of Rule 41(d)
are essentially ministerial in nature and a motion to suppress should be granted
only when the defendant demonstrates legal prejudice ..." United States v.
Marx, supra, 635 F.2d at 441. See also United States v. Dauphinee, 538 F.2d 1,
3 (1st Cir.1976). To show prejudice, defendants must show that they "were
subjected to a search that might not have occurred or would not have been so
abrasive had [Rule 41(d) ] been followed." United States v. Marx, 635 F.2d at
441; United States v. Burke, 517 F.2d 377, 386 (2d Cir.1975). Appellants have
shown neither type of prejudice.

22

Accordingly, the district court correctly denied appellants' motion to suppress.

23

Affirmed.

24

CARTER, District Judge (dissenting in part and concurring in part).

25

I concur in the majority's conclusion that evidence seized under the warrant
issued herein containing no address of the property to be searched need not be
suppressed because of the executing officer's good-faith reliance upon a
warrant issued by a neutral, detached magistrate under the doctrine of United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). I dissent,
however, from the majority's adoption of the rationale that the first warrant
issued was not defective because the officers who executed it possessed in their
minds information particular to the premises intended to be searched sufficient
to obviate an unreasonable likelihood of a mistaken search of the wrong
premises pursuant to the warrant.

26

It is fundamental fourth amendment law that the protections afforded by the

amendment are to be secured by the facial language of the warrant when


issued. Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed.
231 (1927); United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir.1976);
United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970), cert. denied, 404
U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971). The sufficiency of a warrant is
to be judged from the warrant and its attachments. E.g., In re Lafayette
Academy, Inc., 610 F.2d 1, 4-5 (1st Cir.1979); United States v. Klein, 565 F.2d
183, 186 n. 3 (1st Cir.1977); Johnson, 541 F.2d at 1315; United States v.
Womack, 509 F.2d 368, 382 (D.C.Cir.1974), cert. denied, 422 U.S. 1022, 95
S.Ct. 2644, 45 L.Ed.2d 681 (1975); Huffman v. United States, 470 F.2d 386,
393 n. 7 (D.C.Cir.1971), rev'd on reh'g on other ground, 502 F.2d 419 (1974);
Moore v. United States, 461 F.2d 1236, 1238 (D.C.Cir.1972). I see no valid
analytical reason to depart from these principles in measuring the sufficiency of
the first warrant to be issued here. If those principles are applied to this
warrant, it is apparent that it does not describe the premises authorized to be
searched with sufficient particularity, by reason of the total absence of any
street or municipal address, to obviate a substantial risk of a mistaken search of
the wrong premises in the course of the execution of the warrant. A
magistrate's assumptions, if we may assume that they were in fact made, as to
the identity of the officers who will execute a warrant or as to what particular
knowledge such officers may have as to the identity of the property intended by
the officer applying for the warrant to be searched is not in logic or law an
adequate substitute for the safeguard of a facially sufficient warrant. In
pragmatic terms, such assumptions before or after the fact of the execution of
the warrant are lame and ineffective safeguards.
27

I am aware that this rationale has been resorted to frequently in the Eighth and
Ninth Circuits in an attempt to uphold searches and seizures. United States v.
Gitcho, 601 F.2d 369 (8th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62
L.Ed.2d 96 (1979), and cases cited in the majority opinion at 866. I am unable
to find any case, however, in which either the Supreme Court or this court of
appeals has upheld a facially insufficient warrant on that rationale. In fact, it
appears that we explicitly rejected this rationale in Lafayette Academy, 610
F.2d at 5. I am convinced that this court should continue to abjure a doctrine
that is so unwise, unfounded, and ineffective.

28

Because I believe that the warrant is facially defective, it would seem at first
blush that its execution could not be upheld under the doctrine of United States
v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The United
States Supreme Court there noted that for the doctrine to apply, officers must
have, because of the issuance of the warrant, "an objectively reasonable belief
in the existence of probable cause." Id. at 926, 104 S.Ct. at 3423. The Court

further noted: "[D]epending on the circumstances of the particular case, a


warrant may be so facially deficient--i.e., in failing to particularize the place to
be searched or the things to be seized--that the executing officers cannot
reasonably presume it to be valid." Id. at 923, 104 S.Ct. at 3422. Thus, it would
seem that because no officer could deduce with reasonable certainty even the
state or municipality in which the premises authorized to be searched were
located, much less the street therein or the lot number of the premises on such
street, this case is precisely that case that the Court excepted from the reach of
its holding in Leon. I am, however, constrained to accede to the majority's
conclusion based upon Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737 (1984), that Leon does in fact validate the execution of
the search in this case. The operative facts of this case are nearly identical to
those in Sheppard. Here the officer seeking the warrant did present an affidavit
setting forth the address of the premises to be searched. Nevertheless, through
the magistrate's inadvertence, the address did not get incorporated into the
warrant. The officer then received the warrant as validly executed from the
magistrate and proceeded on this record in good faith with its execution. I can
perceive no significant factual distinction between the two cases. The
exclusionary rule is not to be applied to redress an error of the magistrate,
United States v. Leon, 468 U.S. at 921, 104 S.Ct. at 3420, so long as he does
not abandon " 'his "neutral and detached" function.' " Id. at 914, 104 S.Ct. at
3417 (quoting Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12
L.Ed.2d 723 (1964)).
29

Accordingly, I would uphold the order of the district court denying the motion
to suppress on the authority of Leon and Sheppard. I concur in the majority's
resolution of the issues in respect to the scope of the warrant and the need for
the executing officers to have the warrant in their possession.

Of the District of Maine, sitting by designation

"The properties to be searched are a blue, wood-frame ranch style house with
white trim and blue printed shingles with a screened porch on the back and two
solar panels on the roof; a white trailer behind the house; and a barn-like
structure in dilapidated condition of unpainted aged wood. There is a mailbox
bearing the name Bonner in front of the residence. Adjacent to the residence is
a detached two car garage with two separate bays and two separate white
garage doors. Both the trailer and barn have a white electrical cable running
from them to the house."

"I have reason to believe that there is concealed at the premises of 444 Slater

Street, Attleboro, Massachusetts and in adjacent buildings and structures on the


property and in the AMC Hornet vehicle described above and below there is
[sic] located controlled substances, to wit, phenylacetone and amphetamine
precursor chemicals, including, but not limited to acetic anhydride, sodium
acetate, phenyl acetic acid, formamide, hydrochloric acid and others, glassware,
equipment and other paraphernalia used in the illegal manufacture of controlled
substances, books, records and other documents showing chemical formulas
and methods of synthesizing controlled substances or precursors of controlled
substances, or showing orders for or purchases of precursor chemicals or
equipment or other paraphernalia used in the illegal manufacturing of
controlled substances, or showing residence or dominion over the property
where such items are found, all in violation of Title 21, U.S.C. Secs. 841(a)(1)
and 846."